Having pretty much abandoned enforcement of our campaign finance laws, the three Republican members of the Federal Election Commission have plenty of time on their hands these days. So it's no surprise that they joined forces this week on a Politico essay that seeks to justify the FEC's dysfunction.
The piece by Commissioners Donald F. McGahn, Caroline Hunter and Matthew Petersen urges readers to confront "the hard truth" that the FEC's authority to regulate political fundraising and spending has been "severely narrowed by the courts." The trio cast themselves as guardians of free speech, accusing those who support controls on political spending of overlooking "the obvious dangers of an unchecked federal agency regulating the political involvement of citizens."
The real hard truth is that the FEC retains considerable authority but has been blocked from using it by the GOP commissioners. And there is no one -- no one -- in the reform community who wants the agency to operate "unchecked;" the only request is that it function as the vigilant and non-partisan watchdog Congress intended.
The Republican commissioners "have consistently blocked the agency's professional staff from pursuing enforcement matters and have worked to prevent laws on the books from being properly interpreted," veteran reform advocates Fred Wertheimer and Don Simon wrote in a report released in February. The failures are so pervasive that Wertheimer and Simon suggested the FEC be renamed the "Failure to Enforce Commission."
Wertheimer and Simon documented a series of cases, stretching over several years, in which staff recommendations that the commission investigate possible campaign finance violations were thwarted by the three Republicans. In two cases, the evidence was so clear and damning that the alleged offenders -- a non-profit group and a Democratic congressional candidate -- already had agreed to pay fines when the GOP commissioners stepped in and shut down the investigation.
The commissioners' Politico essay seeks to justify such decisions by citing the "shifting nature of campaign finance law." Because the courts seem to adjust the law pretty regularly, they reason, it makes sense to take it easy on enforcement.
Of course, one reason the courts are constantly re-assessing the laws is that well-financed conservative activists keep filing lawsuits calculated to challenge and undercut them. By the commissioners' logic, as long as individuals and groups keep the litigation train going, the FEC should let them do pretty much as they please.
Sadly, the Republican commissioners aren't the only people contributing to the FEC's dysfunction. The Obama administration continues to pay lip service to campaign finance reform while declining to advance that cause by nominating new FEC commissioners or proposing legislation to overhaul the commission and allow it to work.
All five commissioners are now serving beyond their terms, kept in place by the failure of Obama and the Congress to replace them. Given the open hostility of Congressional Republicans toward any regulation of political money, Obama nominees for the FEC would almost certainly be dead-on-arrival in the Senate. But that's no excuse for the administration's failure to submit names and use the GOP's inevitable negative response to stimulate a real national debate on campaign money.
Office: Common Cause National
Issues: Voting and Elections